DEFENCES TO NON-

FATAL OFFENCES
AGAINST PERSONS
CONSENT
OVERVIEW
 Applying or threatening to apply force to the person of
another does not form the subject-matter of assault or
battery if it is consented to.
 This is subject to three qualifications:
1. The consent must be freely given and not vitiated by
fraud.
2. The person condemned must have the legal capacity to
give consent.
3. Where the infliction of bodily harm is involved, the deed
consented to must be one to which consent is legally
recognized as a defence where harm is thereby caused.
THE REALITY OF CONSENT
 This is not an easy question to answer since there is vast range
of responses possible between, at one end of the consent
spectrum ‘Oh yes, please!’ and the other ‘Not over my dead
body!’ Clearly, if V submits to physical contact only due to force or
the threat of force, this is not consent.
 However, the use of force or threat of force is not the only way
consent can be vitiated. For example, deception or threats of
financial or social harm or other non-violent threats might
invalidate consent.
 In Olugboja [1982] QB 320, a rape case, the Court of Appeal drew a
distinction between reluctant acquiescence (consent) and mere
submission (not consent).
 Whether consent is present or not is a question of
fact for the jury on the basis of its own common
sense and experience of life.
 In Kirk [2008] EWCA Crim 434, the Court of Appeal
upheld a conviction for rape of a destitute and hungry girl
who submitted to intercourse so as to be able to buy
food. This was decided under the definition of consent
provided by s.74 of the Sexual Offences Act 2003, but
the basic principles should be comparable. This was
interpreted as a case of submission (I had no real choice)
rather than reluctant acquiescence.
CONSENT NEEDS TO BE EFFECTIVE
 Apparent consent can be rendered ineffective in a number of
ways. In particular, the consent of those who do not understand
exactly what they are consenting to – for example, the young or
those who lack mental capacity – may be ineffective. For this
reason a tattooist was guilty of common assault for tattooing
youths of 12 and 13, consent notwithstanding (Burrell v Harmer
[1967] Crim LR 169).
 More generally, certain types of fraud may vitiate consent.
Consent is not vitiated simply because a person would not have
agreed to the contact had they known all the relevant facts. It is
vitiated only if the nature of the fraud prevented the victim from
understanding what they were consenting to.
 Since 2003, the position on consent in relation to sexual assaults,
including rape, is regulated by the Sexual Offences Act 2003. It enacts
that two deceptions vitiate consent, namely deception as to identity and
deception as to the nature and purpose of the act. The pre-2003 Act law
is still authoritative in relation to non-sexual assaults which is essentially
similar.
 In Bolduc v Bird [1967] SCR 677, D asked V’s consent to conduct a
medical examination on her in the presence of his ‘medical student’, who
in fact was not his medical student but a friend. It was held that her
consent was not vitiated and there was no assault.
 A similar decision was reached in Richardson [1999] QB 444, in which V
submitted to dental treatment by a dentist who had been struck off. It was
held that V’s consent was not vitiated by the fact that her choice was not fully
informed. In both cases the deception was as to the quality of the contact
rather than its nature, and to status rather than identity.
 A slightly different conclusion was reached in
Tabassum [2000] 2 Cr App R 328, in which the
defendant induced women to submit to body
examinations by misrepresenting his medical
qualifications. The Court of Appeal held that
such mistakes could vitiate consent since the
victims were consenting to one thing (medical
examination) and were getting another (indecent
assault).
 Judges are increasingly requiring consent to be fully
informed for it to be operative. This is certainly the case in
relation to the transmission of sexually transmitted
diseases. In Dica (2004) and Konzani [2005] EWCA Crim
706, the Court of Appeal ruled that consent to the act of
intercourse is vitiated for the purpose of common assault,
ss.47 and 20 OAPA, if – unknown to V but known to D –
D is suffering from a sexually transmitted disease. Please
note that consent to the act of intercourse for the purpose
of the crime of rape is not vitiated in this case, since the
act of intercourse was what the victims consented to and
was what took place.
CONSENT AND VIOLENCE
 The final limitation on consent must now be elaborated upon. This
is that, although (absence of) consent is an essential element in
common assault, it is not an essential element in crimes of
violence such as ss.47, 20 and 18 OAPA. This means, in effect,
that the victim’s consent is not normally a defence to a crime of
violence. So consent is a defence to a kiss, a tap, a tickle or a
slap, but it is not a defence to a private physical fight to settle an
argument (as occurred in A-G’s Reference (No 6 of 1980) [1981]
QB 715). In this case Lord Lane CJ said:
 It is not in the public interest that people should try to cause, or
should cause, each other actual bodily harm for no good reason.
Minor struggles are another matter.
 In reaching this decision, the Court of Appeal approved the case
of Donovan [1934] 2 KB 498. The appellant was charged with
indecent and common assault upon a girl whom he had beaten
with a cane, with her consent, for his own sexual gratification.
Explaining his decision, Swift J said at 507:
 If an act is unlawful in the sense of being in itself a criminal act, it is
plain that it cannot be rendered lawful because the person to whose
detriment it is done consents to it. No person can license another to
commit a crime...As a general rule, although it is a rule
to which there are well established exceptions, it is an unlawful act to
beat another person with such a degree of violence that the infliction
of bodily harm is a probable consequence, and when such an act is
proved, consent is immaterial.
DELIBERATE INFLICTION OF HARM
 A-G’s Reference (No 6 of 1980) is authority, in effect, for the proposition that where injury
is inflicted deliberately it cannot be consented to, unless the context within which the injury
is inflicted is specially privileged on public interest grounds. Causing injury for sexual
gratification is not deemed to be in the public interest. In Brown [1994] 1 AC 212, a case
involving a consensual homosexual orgy in which quite serious injuries involving the
genitals were deliberately inflicted, Lord Templeman for the House of Lords put it:
 In my view the line properly falls to be drawn between assault at common law and the offence of
assault occasioning actual bodily harm created by s.47 of the 1861 Act, with the result that consent
of the victim is no answer to anyone charged with the latter offence or with a contravention of s.20
unless the circumstances fall within one of the well-known exceptions such as organised sporting
contests and games, parental chastisement or reasonable surgery.
 In Emmett, The Times, 15 October 1999, consent was similarly not available
where a heterosexual couple engaged in consensual sado-masochistic activities
of a particularly dangerous nature designed to enhance sexual pleasure,
including the burning of the woman’s chest with lighter fuel and partial
suffocation.
 No decision has yet been made on the legality of sado-masochistic activity
involving a low level of violence, for example biting and scratching. In principle,
Brown and Emmett notwithstanding, this should be treated as lawful. Although
such activities cannot be presented as being in the public interest, it can
certainly be argued thatit would be contrary to the public interest to proscribe
them, if only on grounds of privacy and the principle of minimal criminalisation
(see R v Wilson, below). Biting and scratching is a not uncommon incident of
sexual relations even among those who would disapprove of the practice of
sado-masochism. As we have already seen, victim’s consent does render
vigorous sex lawful even if it is of a nature to cause physical injury.
SURGERY, TATTOOING AND BODY
ALTERATION
 Other exceptions to the rule that deliberately inflicted harm cannot
be consented to include, as Lord Templeman remarks,
‘reasonable surgery’.
 The implication behind the use of the word ‘reasonable’ is not
clear, but probably does not require the surgery to be clinically
necessary but, rather, reasonable according to the ethical
standards informing surgery at the relevant time.
 Sex change operations and cosmetic surgery are therefore capable
of being consented to, subject always to the requirement that the
consent is informed.
 In the case of minors, the consent of both parents is necessary for
non-clinically necessary procedures such as circumcision (Re J
(Prohibited steps order: circumcision) [2000] 1 FLR 571.
 Tattooing, ear piercing and other forms of body piercing and body
alteration may also be consented to if reasonable (Brown). In
Wilson [1997] QB 47, the Court of Appeal ruled that it was not
unlawful for a man to brand his partner with a hot knife when it
was consensual and done for purposes of adornment rather than
simply to cause injury.
 The Court said that the criminal law should be slow to interfere
with what people do in private. This does not affect the decisions
in Brown and Emmett. The rather fragile distinction to be drawn
between these cases and Wilson is that in the latter the
consensual hurt suffered by V was incidental rather than the point
of the exercise.
 The Court drew an analogy between this case and a case
of tattooing, which is also lawful where consented to.
 Compare also the recent case of R v BM [2018] EWCA
Crim 560. The Court of Appeal ruled that consent would
not render lawful the removal by a tattoo artist of a
customer’s ear, There was no possible public benefit
attached to such a procedure and, involving gratuitous
mutilation, the procedure was too far removed from
tattooing and piercing to sustain the argument that to
criminalise would be an unreasonable interference with
personal liberty.
BOXING, WRESTLING AND MARTIAL ARTS
 Boxing is a genuine exception to the rule that consent is ineffective in
the case of deliberately inflicted injuries. It attracts a special privilege in
that even acts intended to cause serious injury can be consented to.
This is a peculiar exception, given that informal fighting attracts no such
privilege and that the only positive public interest benefit discernible is
the enjoyment spectators receive in watching the spectacle – hardly a
‘good reason’, one would suppose, for permitting it.
 It certainly sits ill with the position with respect to consensual sado-
masochism where the participants themselves experience the
enjoyment. Wrestling and martial arts are probably not an exception
because these sports, unlike boxing, do not have the intentional infliction
of injury as the point of the activity. Consent to incidental injuries is
probably effective for the same reason as other contact sports, as will
now be discussed.
NON-DELIBERATE INFLICTION OF HARM
GAMES AND SPORTS
 The other privileged activities referred to by Lord
Templeman include lawful sports and games.
Consent is effective in relation to this category for a
different reason than that for boxing – namely that the
taking of risks and engaging in dangerous pursuits is
normal human activity and should be criminalised
only if the risk-taking is contrary to public policy.
Injuries inflicted in the course of contact sports such
as football and rugby will therefore be prima facie
lawful unless deliberately inflicted, in which case
consent, even were it to be present, is ineffective.
 This is the conclusion to be drawn from Barnes [2004] EWCA Crim 3246 where
the Court of Appeal said that resort to the criminal courts in cases of sporting
injury should be exceptional. Most sports have their own codes of discipline
which can properly be deployed in the face of dangerous play. An instinctive
error, reaction or misjudgement in the heat of a game was not to be treated any
differently. However, intentionally caused injuries give no immunity:
 In making a judgment as to whether conduct is criminal or not, it has to be borne in
mind that, in highly competitive sports, conduct outside the rules can be expected to
occur in the heat of the moment, and even if the conduct justifies not only being
penalised but also a warning or even a sending off, it still may not reach the
threshold level required for it to be criminal. That level is an objective one and does
not depend upon the views of individual players. The type of the sport, the level at
which it is played, the nature of the act, the degree of force used, the extent of the
risk of injury, the state of mind of the defendant are all likely to be relevant in
determining whether the defendant’s actions go beyond the threshold. (Per Lord
Woolf CJ at [15])
 In principle, the same reasoning applies to
wrestling and martial arts. Although potentially
dangerous, participants are deemed to validly
consent to injuries sustained as a result of
contacts, whether or not they are explicitly
covered by the rules of the sport, so long as
they are of a nature to be expected of the sport
as it is played at the relevant level.
HORSEPLAY
 The decision in the A-G’s Reference (No 6 of 1980) case must be distinguished
from cases of rough and undisciplined horseplay. The essence of the former was
that the blows landed by the accused were intended to cause injury. Play fighting
and other expressions of high spirits which result in physical injury are not so
treated and consent may therefore be a defence.
 In Jones (1986) 83 Cr App R 375, D (a schoolboy) and others, to celebrate V’s
birthday subjected V to the ‘bumps’ (a procedure involving throwing the subject
into the air and allowing them to drop on the ground). This caused V to suffer a
broken arm and a ruptured spleen. D’s appeal against a conviction under s.47
was allowed. Given the context there was evidence of either express or implied
consent to the ‘bumps’ procedure. In any event even if consent were absent
such that the actus reus was established, the defendants’ belief that V was a
willing participant meant that they lacked the mens rea for the crime charged.